Abstract

http://ssrn.com/abstract=2311329
 


 



The Collapse of the Harm Principle Redux: On Same-Sex Marriage, the Supreme Court's Opinion in United States v. Windsor, John Stuart Mill's Essay on Liberty (1859), and H. L. A. Hart's Modern Harm Principle


Bernard E. Harcourt


Columbia University

August 16, 2013

U of Chicago, Public Law Working Paper No. 437

Abstract:     
In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central point. The argument in The Collapse of the Harm Principle can be slightly restated and, I believe, continues to shed light on contemporary debates over the legal regulation of morality: Today, the hegemony of the modern harm principle, developed by liberal legal thinkers at mid-twentieth century, continues to generate a proliferation of harm arguments, and the competing claims of non-trivial harms have effectively neutralized the limiting function of the harm principle. I then demonstrate the continued vitality of the argument by exploring the recent Supreme Court decision on same-sex marriage, United States v. Windsor, which, I argue, reflects perfectly the collapse of the harm principle.

Number of Pages in PDF File: 28

Keywords: John Stuart Mill, H.L.A. Hart, Lord Devlin, Joel Feinberg, Herbert Wechsler, harm principle, legal moralism, moral limits of the criminal law, same-sex marriage, homosexuality, prostitution, regulation of vice

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Date posted: August 18, 2013  

Suggested Citation

Harcourt, Bernard E., The Collapse of the Harm Principle Redux: On Same-Sex Marriage, the Supreme Court's Opinion in United States v. Windsor, John Stuart Mill's Essay on Liberty (1859), and H. L. A. Hart's Modern Harm Principle (August 16, 2013). U of Chicago, Public Law Working Paper No. 437. Available at SSRN: http://ssrn.com/abstract=2311329 or http://dx.doi.org/10.2139/ssrn.2311329

Contact Information

Bernard E. Harcourt (Contact Author)
Columbia University ( email )
Jerome Green Hall, Room 515
435 West 116th Street
New York, NY 10027
United States
HOME PAGE: http://www.law.columbia.edu/fac/Bernard_Harcourt
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